Court File and Parties
COURT FILE NO.: FS-18-001928 DATE: 20180824 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Younus Shareef Majumder, Applicant AND: Nusrat Rashmi Rahman
BEFORE: Justice Kristjanson
COUNSEL: Paul Slan, for the Applicant Belinda Rossi for the Respondent
HEARD: August 9, 2018
COSTS ENDORSEMENT
[1] I have now reviewed the Bills of Costs and the Offers to Settle. Ms. Rahman was entirely successful on the interim spousal support motion. The failure of the Applicant to comply with the Family Law Rules on production complicated the matter enormously.
[2] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants. Costs awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[3] Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. Rule 2(4) states that counsel have a positive obligation to help the court to promote the primary objective under the family law rules. Rule 2(3) provides that dealing with a case justly includes ensuring that the procedure is fair to all parties, saving time and expense, and appropriately using the Court’s resources, all of which are relevant factors in this case.
Rule 24(1) – Costs
[4] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs.
[5] In making this decision I have considered the factors set out in Rule 24(11) as follows:
24 (11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[6] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor set out in Rule 24(11)(b) above). It reads as follows:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[7] In this case, the husband’s persistent failure to provide adequate financial disclosure is unreasonable.
Rule 18(14) - Costs Consequences of Offers to Settle
[8] Subrule 18(14) of the Family Law Rules reads as follows:
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[9] In this case, the wife beat all her offers.
[10] Taking into account all the factors, I find that the husband’s behaviour has been unreasonable. His failure to comply with financial disclosure obligations under the Rules has prolonged the motion, and made it next to impossible for the wife to determine his appropriate income, complicating issues, causing delay, and making the litigation more expensive. In the circumstances, I find that the fees are reasonable. The wife beat her offers to settle. In the circumstances, I award full recovery costs to the wife of $34,094.92, inclusive of HST and disbursements, fixed and payable forthwith.
Justice Kristjanson Date: August 24, 2018